Lawsuit Filed After Export-Import Bank Official Swears He 'Accidentally' Deleted All Of His Responsive Text Messages

from the New-Year's-Resolution:-1.-Delete-incriminating-texts dept

Sure, Freedom of Information laws are great, but they have their downsides. For one thing, they clearly signal to agencies which records are being sought. It's unavoidable. To answer a request, an agency needs to know what it's looking for. Once the request is out in the open, efforts can begin in earnest to excise information anyone affected doesn't want made public.

A top official at a controversial U.S. export finance agency deleted text messages sent within days of the 2014 midterm elections after a watchdog group filed an open records request for the messages, the agency admitted recently.

The watchdog group -- Cause of Action -- sought "text messages, Blackberry messenger chats and SMS messages sent or received by top officials during the period of days between November 2, 2014 and November 8, 2014." These would be texts fired back and forth during the mid-term elections by officials of the controversial US Export-Import Bank, which was facing the reality of having its funding halted by House Republicans.

Cause of Action got most of what it sought… several months later. It filed the request on November 20, 2014 but didn't receive a response until May 12, 2015. That response brought with it the following bad news:

[T]he messages for Scott P. Schloegel were accidently deleted on approximately January 1, 2015. Enclosed is signed declaration from Mr. Schloegel attesting to the deletion.

And sure enough, there's Schloegel's attestation that he did, indeed, nearly 45 days after the request was received, "accidentally" delete the relevant text messages. This violation of duties to preserve public records wasn't reported to Cause of Action until its very belated response from the agency itself, fourmonths after the deletion took place.

For what it's worth, there's a sworn statement that says Schloegel didn't do this on purpose. I'm not sure how much culpability that alleviates, but I suppose it's better than a sworn statement claiming Schloegel did this deliberately and what are you going to do about it? But the end result is the same. The messages sought won't be making their way to the requesting entity.

And for what it's worth, Cause of Action is now suing the Export-Import Bank, demanding that the DOJ and/or Congress commence an investigation and work toward the recovery of the deleted messages. Whether or not this will prompt any action remains to be seen, but Cause of Action is still working hard to audit government agencies' FOIA response efforts. This particular request is part of a larger effort, as noted in the lawsuit:

In part due to this concern, Cause of Action has been conducting an investigation into whether federal agencies comply with their obligation to preserve text messages for a period of time. As a part of this investigation, Cause of Action lawfully requested that Ex-Im Bank produce the text message records of five high-ranking agency officials for a one week period in which text messaging likely would have been used to conduct agency business (November 2-8, 2014, or election week).

Because so much official communication now travels on more ethereal channels, the effort it takes to simply make possibly embarrassing documents vanish is practically nil. Any failure to follow up on accusations like these -- or even purportedly innocent "deletions" -- will signal to government agencies that carelessness with the public's information is acceptable. There's really no reason government agencies aren't working with redundant systems at this point. It takes little-to-no effort to ensure pertinent files housed on issued electronics are backed up elsewhere, thus ensuring that this sort of sworn "accident" doesn't result in the permanent removal of requested information.

Reader Comments

Umm...

There's really no reason government agencies aren't working with redundant systems at this point.

You kinda answered your own question there with the sentence that immediately followed that line.

It takes little-to-no effort to ensure pertinent files housed on issued electronics are backed up elsewhere, thus ensuring that this sort of sworn "accident" doesn't result in the permanent removal of requested information.

There absolutely is a reason for them not to be working with redundant systems, and you yourself pointed it out. Redundant systems make 'accidental' deletions, like what happened here, a lot trickier to manage, so you can be sure those in public office or similar positions will do everything they can to avoid setting them up, most likely with the excuse of how 'costly' it would be.

Re: Whose phone was it?

If it was his personal phone then what right does anyone have to FOI messages from it? These would be personal communications and of no interest to anyone, right?.

If he was using his personal phone to conduct official business, then I think those messages would be subject to FOI requests and generally treated the same as any other official message. You can't escape the FOIA just by using private equipment (though Clinton sure tried).

2+ party communication

Doesn't any kind of business communication require a sender & [a] receiver/s? Yes, I know a rare amount may be sent to oneself. But a large majority, bordering on all, of business communications would be to someone other than the sender.

Shouldn't this mean either 1) Cause of Action got, or can get, them from the sender or receiver or 2) the banker wasn't the only one to delete them?

I can't imagine a BANK not keeping some kind of records of who all an employee is expected or authorized to communicate with.

Schloegel's actions after the deletion should be considered.

Ok, even if you do accidentally scroll through the menus to the messages, and accidentally scroll down to the delete read messages option, and accidentally select delete all, and accidentally select OK when it asks if you're sure, ...

... well even if all that happened, surely if it was an accident, you'd take your phone to the office IT guy and ask if he could do anything to recover your deleted messages? That would clearly demonstrate your bona fides. Whereas if you just shut up and said nothing about this terrible unfortunate accident to anyone until it was dragged out of you months later, that might imply dishonesty.

I wonder what Schloegel did in the immediate aftermath of his 'accident'?